me court of appeals of wes · at time marker 2:02:02] the agenda ofthe planning commission for its...

MAR 262014

~ME COURT OF APPEALS OF WES W

EDWARD R MOORE LR-O-Ry-LPE~RRy-IlCLER-K-- EDWARD E DUNLEAVY and SUPR~~~CEOS~Rv~~tl~rEALS

SHEPHERDSTOWN BATTLEFIELD PRESERVATION ASSOCIATION INC Petitioners below

Petitioners

v NO 13-1243

JEFFERSON COUNTY PLANNING COMMISSION a public body Respondent below

Respondent

and

FARAWAY FARM LLC Intervenor below

Respondent

PETITIONERS BRIEF ON APPEAL

Counsel for Petitioners

Linda M Outsell (WVSB 5774) Attorney at Law 107 North College Street Martinsburg WV 25401 (304) 262-0223 gutsell_lawfrontiercom

TABLE OF CONTENTS

Table of Contents 1

Table of Authorities ii

I ASSIGNMENTS OF ERROR 1

II STATEMENT OF THE CASE 1

III SUMMARY OF ARGUMENT 17

IV STATEMENT REGARDING ORAL ARGUMENT AND DECISION 19

V ARGUMENT 19

1 The circuit court erred in ruling that there was a genuine issue of material fact as to when the settlement was concluded which determination was directly contrary to the record in the case 19

2 The circuit court erred in setting aside the Partial Summary Judgment thereby concluding that the Planning Commission had not violated the Open Governmental Proceedings Act 21

a Agenda Notice 22

b Announcement of Authorization for Executive Session 28

c Reporting the Terms of the Settlement 29

3 The circuit court erred in concluding that the Planning Commissions conduct was de minimus and did not merit a remedy30

VI CONCLUSION 32

VII CERTIFICATE OF SERVICE 35

TABLE OF AUTHORITIES

Case Law

Far Away Farm LLC v Jefferson Co Bd oZoning Appeals 222 WVa 252 664 SE2d l37 (2008) 3

Gentry v Mangum 195 WVa 512466 SE2d 171 (1995) 20

Kramer v Board ofAdjustment Sea Girt 80 NJSuper 454 194 A2d 26 (1963) 27 28

McComas v Bd ofEduc ofFayette County 197 WVa 188201475 SE2d 280293 (1996) 27

Nelson v W Va Pub Emp Insur Bd 17 WVa 445 300 SE2d 86 (1983) 30

Peters v County Comm n ofWood County 205 WVa 481 519 SE2d 179 (1999) 10 12 182224

Sprout v Bd ofEduc ofCo 0Harrison 215 WVa 341 599 SE2d 764 (2004) 23 24

State ex rei Marshall Co Commn v Carter 689 SE2d 796802 (WVa 2010) 23

Wetzel County Solid Waste Authority v W Va Div 0Natural Resources 184 W Va 482401 SE2d 227 (1990) 24

Statutes

WVa Code sect 6-9A-l 1 2331

WVa Code sect 6-9A-2 25

WVa Code sect 6-9A-3 12 23 25

WVa Code sect 6-9A-4(a) 12 23 28

WVa Code sect 6-9A-4(b) 23

WVa Code sect 6-9A-4(b)(11) 6 71921232930

WVa Code sect 6-9A-4(b)(12) 22 23

11


WVa Code sect 6-9A-l1 24

WVa Code sect SA-5-S2

WVa Code sect 8A-9-1 2 11

OGMC Advisory Opinions

OMAO No 2003-04 24

OMAO No 2005-1 0 27 28

OMAO No 2006-11 27

OMAO No 2006-13 24 26

OMAO No 2006-14 25

OMAO No 2006-15 27

OMAO No 2007 -525

OMAO No 2007-06 27

OMAO No 2007 -1 025

OMAO No 2008-17 25

OMAO No 2009-02 25

OMAO No 2009-04 25

OMAO No 2011-03 24

Rules

West Virginia Rules of Civil Procedure

WVRCivP 12(b)(6) 6

111

BRIEF OF PETITIONERS

I ASSIGNMENTS OF ERROR

1 The circuit court erred in ruling that there was a genuine issue ofmaterial fact as to when the settlement was concluded which determination was directly contrary to the record in the case

2 The circuit court erred in setting aside the Partial Summary Judgment thereby concluding that the Planning Commission had not violated the Open Governmental Proceedings Act

3 The circuit court erred in concluding that the Planning Commissions conduct was de minimus and did not merit a remedy

II STATEMENT OF THE CASE

Petitioners brought this civil action against Respondent the Jefferson County Planning

Commission asserting violations of the Open Governmental Meetings Act WVa Code sect 6-9Ashy

1 et seq (hereinafter the Act) Specifically Petitioners asserted that the Planning

Commission in executive session deliberated upon and decided to settle a civil action in which

Petitioners had interest but that in so doing the Planning Commission failed to comply with the

necessary notice requirements ofthe Act In the months that followed the Planning Commission

also failed to report the terms ofthe settlement with a reasonable time after the conclusion of the

settlement that conclusion being the date on which the circuit court entered the order setting out

the agreed settlement In fact the Planning Commission never reported the terms ofthe

settlement in its minutes

By decision dated March 222011 the Planning Commission denied the fourshy

and-a-half-year extension of the Community Impact Statement deadlines sought by prospective

developer Far Away Farm LLC (hereinafter FAF) [App at 276 497] Pursuant to WVa

Code sect 8A-9-1 et seq F AF appealed the denial to the circuit court which action was docketed

at Civil Action No ll-C-12S [App at 276-277 284]

Petitioners being immediate neighbors to the F AF parcel andor otherwise

interested in the proposed development timely filed a motion to intervene in Civil Action No

ll-C-125 so as to protect their interests [App at 277 282523-526536-542] The motion to

intervene was briefed to the circuit court by the parties therein and argued to the circuit court at

a hearing conducted on June 28 2011 [d Subsequently the Planning Commission filed its

response to the motion to intervene in which it obliquely suggested that it might be intending to

resolve FAFs appeal by a negotiated settlement I [App at 277 1131 at n 2] In their reply

Petitioners argued that a private settlement reversing a duly-rendered decision ofthe Planning

Commission would exceed the lawful powers ofthe Commission and would violate the Open

Governmental Proceedings Act

it is now beyond dispute that [the Planning Commission] anticipated resolving the instant action through a negotiated compromise with FAF It is equally clear that this is the primary reason for the Planning Commissions opposition to the intervention sought by Movants who it appears are regarded as the potential spoilers in any negotiation See Defendants Response at [fn 2] Unfortunately for the Planning Commission and FAF even ifMovants were not permitted to intervene in this civil action the Commissions decision cannot be compromised through negotiation To do so would be unlawful

A planning commission has no inherent power to reopen a matter on which it has already rendered a decision and it certainly cannot privately negotiate any change to that decision The law affords only one procedure by which a planning commission can reopen and reconsider a prior decision and that is upon the timely request ofan applicant after denial ofa major subdivision plan or plat WVa Code sect 8A-5-8 And because a planning commission is subject to the Open Meetings law ofthis State WVa Code sect 6-9A-1 et seq any such authorized reconsideration would have to occur in a public meeting not behind the closed doors of private negotiation

[App at 277-278 1080-1081]

Petitioners dispute the characterization of remarks that their counsel made regarding a private settlement of FAFs sect SA-9- I appeal and of when those remarks were made

2

I

Before the circuit court ruled on Petitioners motion to intervene in Civil Action No 11shy

C-125 the Planning Commission and F AF submitted an Agreed Settlement Order which the

court entered on August 3 2011 thus resolving said civil action [App at 278 285] The Agreed

Settlement Order was not served on Petitioners prior to its presentation to the circuit court

[App at 799-800] petitioners learned ofthe entry ofthe Agreed Settlement Order only because

on August 8 2011 their counsel received a copy from the Circuit Clerk [App at 278]

The Agreed Settlement Order did not merely grant to F AF the full extension ofits

Community Impact Statement for which it had applied and been deniedupon evidence adduced

at a public hearing and which denial was the only matter in issue in Civil Action No II-C-125

[App at 285-287] The Agreed Settlement Order also granted to FAF a re-issued Condition Use

Permit (CUP) with an original term ofeighteen (18) months and an advance extension of

eighteen (18) months - a re-issued permit and extension for which no application had been made

no public hearing conducted and which was not at issue in Civil Action No ll-C-125 Id

Petitioners not having seen the F AF case listed on any recent Planning Commission

meeting agenda undertook to discover when the settlement agreement had been approved which

investigation required review of several months ofagendas hundreds ofpages ofagenda

packets meeting minutes and recordings ofmeetings [App at 408-22] Petitioners found no

agenda listing the FAF appeal as a topic that would be discussed at any meeting [App at 333]

Petitioners ultimately deduced that it was at its regular meeting ofJuly 262011 that the

Planning Commission authorized its President and legal counsel to enter into the negotiated

2 The Planning Commission issued a CUP to FAF on October 82008 pursuant to this Courts mandate in Far Away Farm UC v Jefferson Co Ed ojZoning Appeals 222 WVa 252 664 SE2d 137 (2008) [App at 965 ~ 12) FAF had already sought and been granted an extension of its CUP from the Board of Zoning Appeals pursuant to the provisions of the later-adopted zoning ordinance [App at 966 ~ 18 1105-1106) The BZA advised F AF that if it needed further extension it could make application to the BZA in the future Id Such application would have been noticed in the agenda and heard at a meeting of theBZA

3

settlement reflected in the aforesaid Agreed Settlement Order [App at 4013-14 278 279 1251

at time marker 20202] The agenda ofthe Planning Commission for its meeting ofJuly 26

2011 gives no indication that the F AF appeal would be discussed at the meeting - the agenda

only vaguely says Reports from Legal Counsel and legal advice to PC [App at 278 295]

The official audio recording of the meeting ofJuly 262011 reveals that the Planning

Commission moved to go into executive session upon being told by its legal counsel then present

that I will expect action immediately after the session [App at 280 1251 at time marker

20202] Prior to retiring into executive session the presiding officer ofthe Planning

Commission did not identify the authorization for the executive session under the Open

Governmental Proceedings Act Id let alone state that the pending FAF appeal was the subject

ofdiscussion When the executive session ended and the public meeting resumed the Planning

Commission entertained the motion of a Commissioner stated as follows I move that we

proceed with the order as drawn by counsel today and presented to the Commission and to

authorize president to sign it [App 280 293 1251 at time inarker 20250] The aforesaid

motion passed by unanimous vote Id

In short nothing listed on the agenda for the July 26 2011 meeting would have infonned

an interested person that the F AF appeal would be a subject ofdiscussion at the meeting

Nothing said by the Planning Commissioners during the meeting would have enabled a person in

attendance to discern that the FAF appeal was a subject being discussed at the meeting3

Neither the Agreed Settlement Order nor its terms were revealed in the official minutes of

the Planning Commission meeting ofJuly 26 2011 which were approved at the meeting of

3 By contrast in the matter of litigation regarding the proposed Alstadts Comer development where no interested persons had moved to intervene the proposed settlement approved at the previous meeting was read discussed and voted upon during the public meeting [App at 1003 at time marker 33447 1090] But Alstadts Comer also did not appear on the agenda of either meeting at which it was discussed [App at 336 338 1018]

4

August 9 2011 six days after the circuit courts entry ofthe order [App at 281 289-293]

Neither the Agreed Settlement Order nor its terms were revealed in the official minutes ofthe

Planning Commission meeting ofAugust 9 2011 which were not approved until the September

132011 meeting more than a month after the Courts adoption ofthe settlement agreement

[App at 393] Neither the Agreed Settlement Order nor its terms were revealed in the official

minutes ofthe Planning Commission meeting ofSeptember 13 2011 which were not approved

until the October 11 2011 meeting more than two months after the Courts adoption of the

settlement agreement and a month after the filing of the Petition below [App at 401]

Finally in the minutes ofthe Planning Commission meeting ofOctober 11 2011 which

minutes were approved at the November 82011 meeting (more than three months after the

circuit courts entry of the Agreed Settlement Order) the following statement appears

Ms Grove stated that the order discussed at the July 26 2011 Planning Commission meeting had been signed and should be included in the minutes (Full text ofthe order is attached)

[App at 411 t Despite this statement the minutes that are posted on the Planning Commissions

official website do not include the Agreed Settlement Order [App at 991 at n 17 1097] Nor is

the Order attached to the official hard copy ofthose minutes which Petitioners secured in June

of2013 pursuant to a discovery request [App at 895 1092]

On September 92011 Petitioners filed their Petition alleging that the Planning

Commission had violated the Act and seeking remedies for the violations [App at 275]

Petitioners sought the remedies provided by the Act including the annulment of the Planning

Commission vote ofJuly 262011 [App at 282-283]

4 The minutes of the October 11 2011 Planning Commission meeting also reveal that the Commission retired into executive session with its counsel to discuss litigation but the name of the litigation that would be the subject of discussion also is not listed on the meeting agenda [App at 413]

5

At the outset of the civil action only one date was directly material to Petitioners claims

July 262011 the date of the meeting at which the Planning Commission voted to approve and

enter into the Agreed Settlement Order in violation ofboth WVa Code sect 6-9A-4(a) and WVa

Code sect 6-9A-3 as described above Initially these were the only two violations for which

Petitioners could have sought and did seek relief [App at 280-281 W37-38] July 262011

was the date on which the 120 days in which Petitioners could bring an action for these

violations of the Act began to run WVa Code sect 6-9A-6

August 3 2011 - the date on which the circuit court entered the Agreed Settlement

Order and dismissed Civil Action No 11-C-125 from the docket - was not relevant to the claims

based on advance notice violations [App at 278 ~ 18285-287] August 3 2011 being the date

on which the settlement between the Planning Commission and F AF was concluded [App at

278 at ~ 18] was the date from which it would be determined ifthe Planning Commission

reported the terms of the settlement in its minutes within a reasonable time WVa Code sect 6shy

9A-4(b)(11) Petitioners stated the August 3 date and cited the subsequent reporting requirement

in their Petition [App at 281] but Petitioners could not yet allege a violation of WVa Code sect

6-9A-4(b)(11) Petitioners realized a violation ofWVa Code sect 6-9A-4(b)(11) might later be

established ifthe Commission continued to delay reporting the terms ofthe settlement in its

minutes5 By the statements in their Petition Petitioners intended to allow for this possibility

and put the Planning Commission on notice ofthe issue However as of the date of filing their

Petition Petitioners believed it was premature to assert and pursue a claim that the Planning

Commission had not reported the terms ofthe concluded settlement within a reasonable time

5 Although Petitioners actually thought it more likely that upon receiving the Petition the Planning Commission would promptly report the terms of the settlement so as to avoid a violation of its duty to report Either way Petitioners believed then as they do now that the notice violations alone were sufficient to sustain their case

6

[App at 327-328 306-18 990] - especially in the absence ofa case decision determining what

constitutes a reasonable time under WVa Code sect 6-9A-4(b)(11) [App at 3012-15]

Before Petitioners sense ofthe prematurity ofthe reporting issue had passed the

Planning Commission filed its Motion to Dismiss the Petition The Planning Commission put

the reporting question directly in issue in its motion - seeming to treat it as the only violation of

the Act claimed in the Petition [App at 304-305] Petitioners corrected this misapprehension in

their Response to Defendants Amended Motion to Dismiss [App at 319327-328] Because

the Planning Commission had argued the issue in its Motion to Dismiss however Petitioners

responded to the argument noting that the terms of the settlement still had not been reported in

the minutes ofany intervening meeting [App at 328] In noting the passage of time prior to

approval of each meetings minutes Petitioners solely referred to the circuit courts entry ofthe

Agreed Settlement Order as the starting point Id

Shortly after the conclusion ofbriefmg on the Motion the circuit court by

correspondence invited counsel to comment upon Petitioners standing to bring the case [App

at 370] Counsel for Petitioner responded discussing the applicable provisions of the Act

summarizing the ways in which Petitioners were personally interested in the challenged vote of

the Planning Commission and explaining how the lack ofnotice on the meeting agenda

prevented Petitioners from protecting those interests [App at 640] Counsel for the Planning

Commission did not respond to the circuit courts invitation to comment

Three months later at the February 10 2012 hearing on the Commissions Motion to

Dismiss the Petition [App 1 377] counsel for the Planning Commission again argued that the

reporting requirement was the essence of Petitioners case

7

I think it is fairly straightforward I think the real essence of it is talks about whether the settlement was entered into the Minutes in a reasonable time after it was arrived at

The complaint as I laid out in my motion speaks to what happened in July And the math no matter what the issue of reasonable time thereafter could be I dont see what happened in July is before the Court entered the order is before the settlement was concluded6

[App at 224-39] Counsel argued that before the circuit court entered the settlement order the

Planning Commission had no obligation to do anything under the Act [207-11]

In response Petitioners counsel again emphasized that their claims primarily were

directed to the notice violations ofthe July 262011 meeting [App at 303-329 3315-3412]

That is those violations that deprived Petitioners of information that would have led them to

attend the meeting and would have enabled them to protect their interests in Civil Action No 11shy

C-125 especially giving them an opportunity to convince the circuit court to forgo entry of the

Agreed Settlement Order before allowing Petitioners to be heard [App at 3515-3810392-21

404-7421-21] By the February 10 2012 hearing however enough time had passed to

address the question ofwhether or not the Planning Commission had reported the terms ofthe

settlement within a reasonable time7 [App at 309-15]

At the hearing ofFebruary 10 2012 the circuit court permitted counsel for the Planning

Commission to make arguments that far exceeded those set out in the Motion to Dismiss and the

6 As this shows the Planning Commission erroneously argued that Petitioners were measuring from the July 262011 meeting to determine the reasonable time for reporting the terms of the settlement in the minutes - which Petitioners had not done [App at 328] This was the birth of a purported dispute and it was wholly a product of the Planning Commissions mistake The Planning Commission later resurrected its erroneous attribution as an established fact despite that Petitioners repeatedly showed it to be in error

7 However by the end of the hearing the Planning Commission also had reversed its initial argument and argued that the statutory requirement of reporting within a reasonable time was not even mentioned in the Petition [App at 10520-1061] Of course the Petition not only cited that statutory provision but quoted it in its entirety [App at 281]

8

scope ofWVRCivP 12(b)(6) [App at 418-21] Although argument was made regarding the

limited scope ofreview under WVRCivP 12(b)(6) [App at 216-16] Petitioners counsel

also appreciated the opportunity to respond and expound upon a case where literally all ofthe

facts relevant and necessary to Petitioners claims appeared in the Planning Commissions own

records and the Agreed Settlement Order entered by the circuit court in Civil Action No ll-Cshy

125 [App at 211-52311-166517-665]

Two ofthe outside of the motion arguments would characterize the Planning

Commissions defense for the remainder ofthe case Counsel argued that Petitioners lacked

standing to bring the case Counsel premised the argument upon the aggrieved standard found

in Chapter SA ofthe Code [App at 415-91] Petitioners argued in rebuttal that the Act

bestowed the right to bring the case not the aggrieved standard ofChapter SA but explaining in

detail that Petitioners interests would rise to the level ofaggrievement even ifthat were the

criteria for standing under th~ Act [App at 2311-1223 17-193515-3810 392-24 404-7

421-214313-4415116-523 541S-5512 5812-632 11320-1142]

Counsel for the Planning Commission also argued that attorney-client privilege would

defeat Petitioners claims [App at 7324-7412 7514-17] Counsel represented that he had

received the settlement offer the day ofthe meeting ofJuly 262011 and that because he had a

duty to promptly convey it to his client the Planning Commission also was entitled to retire into

executive session to discuss and make a decision regarding the settlement offer on that same

night even though the F AF case was not listed as a topic ofdiscussion on the meeting agenda

[App 7912-937 9719-9823 992-7] Although counsel asserted that the FAF case had been

on the agenda several times [App at 11 11-12) and had been discussed at prior meetings [App

at 11 5-9) under questioning by the court counsel admitted that none of the agendas identified

9

FAF as a topic ofdiscussion [App at 7810-20] Counsel admitted that the agendas only

contained the entry Reports from legal counsel and legal advice to PC and admitted that the

entry was a holding spot for any legal issues that might be discussed [App at 78 1 0-20 110 19-

Ill 13] Counsel argued however that because the Planning Commission was entitled to meet

privately with its counsel under this Courts decision in Peters v County Comm n oWood

County 205 WVa 481 519 SE2d 179 (1999) it wasnt required to provide any more specific

notice on its agendas [App at 79 12-824 80 12-85 19] and that the Act and case law say that

the attorney-client relationship defeats the requirements ofthe Act [91 12-17] In fact counsel

argued because members of the public could not participate in executive sessions the Planning

Commission did not have to give any notice of the subject ofdiscussion [App at 9719-997]

In rebuttal Petitioners counsel pointed out that Petitioners did not assert a right to

participate in executive sessions or even that an executive session had to be on the agenda - only

that the topics to be discussed at a meeting had to be identified on the agenda [App at 1089shy

20] Petitioners counsel disputed the Planning Commissions contention that attorney-client

privilege relieved it ofall notice requirements of the Act [App at 311-13 3210-19] Counsel

argued that the lawyers duty to promptly relate receipt ofa settlement order and the Planning

Commissions separate duty under the Act to give advance notice ofthe intended topics of

discussion at a meeting were not mutually exclusive and that both could be satisfied relatively

easily [App at 3210-34123518-21414-2110823-1108]

The undeniable results of the February 10 2012 hearing were two-fold First that the

Planning Commission believed that discussion of any legal matter was immune to the notice

provisions ofthe Act and that as a matter ofstandard practice the Commission did not list such

topics on its agenda Secondly that the material facts needed to prove violations ofthe Act were

10

fully identified exposed and proven at the hearing The circuit court asked ifthe case would

require a petit jury or was purely a matter for the court presenting only legal issues [App at

6514-16 10614-16] Petitioners counsel answered that the case presented only questions of law

because all ofthe necessary facts were in the official records ofthe Planning Commission and

were indisputable [6517-665] Counsel for the Planning Commission also answered that there

were no questions of fact stating that

its purely on the record its not like there is a different set of facts whether there was a meeting at the Iron Rail on September 25th with four Planning Commissioners or not this was a public meeting I dont see how there is a question of fact

[App at 10618-1074] However the Planning Commission later changed its position - and in

the final phase ofthe case also repeated all ofthe arguments that it had made at the hearing of

February 10 2012 which the circuit court accepted in its final rulings

The circuit court denied the Amended Motion to Dismiss [App378] Shortly thereafter

the court set the matter for final hearing [App at 380] Drawing upon the express statements of

counsel the court accurately concluded that both counsel represented that the facts ofthis case

are not in dispute Id The Planning Commission made no objection to this finding

Subsequently FAF moved to intervene in the case [App at 416] Petitioners did not

object to FAFs intervention [App at 507] and the circuit court granted FAFs motion [App at

674] While not objecting to FAFs intervention Petitioners strongly objected to any attempt on

FAFs part to interject the substantive merits of Civil Action No 11-C-1258 (or even earlier

matters) into the open meetings case insofar as the merits ofFAFs Code sect 8A-9-1 appeal had

no bearing on whether or not the Planning Commission had violated the Act in approving the

Agreed Settlement Order as had been done [App at 1228-124 19 770-771 779-782]

8 That is whether or not the Community Impact Statement deadlines extension sought by F AF should have been granted by the Planning Commission [App at 1338-15]

11

Petitioners objection was not without grounds9 [App at 416-426 432-498 560-570 586-587

594-612 964-971]

The circuit court having found that the facts were not in dispute [App at 380]

Petitioners then submitted their Motion for Partial Summary Judgment [App at 381] In said

Motion Petitioners asked the Court to rule upon the undisputed record facts that the Planning

Commission had committed three precise violations of the Act (1) failing to identify the topic

to be discussed on the advance agenda notice ofthe meeting as required by WVa Code sect 6-9Ashy

3 (2) failing to announce the authority for going into executive session as required by WVa

Code sect 6-9A-4(a) and (3) failing to report the tenns ofthe settlement in the minutes within a

reasonable time after its conclusion 10 Id In presenting the facts showing that the Planning

Commission had failed to report the terms ofthe settlement within a reasonable time Petitioners

motion repeatedly referred to the date on which the circuit court entered the Agreed Settlement

Order as the date from which the elapsed time was measured [App at 385]

In its response to the motion and for its cross-motion the Planning Commission again

stated that the evidence was in the public records although it disagreed with Petitioners

characterization ofthose records [App at 544] The Planning Commission even explained why

it had not reported the terms ofthe concluded settlement at its September 2011 meeting II

9 Which prompted Petitioners for the protection of their own interests to respond in kind challenging the factual averments of F AF and even presenting material evidence serendipitously discovered long after this Courts decision in Far Away Farm 222 Wva 252 664 SE2d 137 [App at 509 515-517 677-681691-715]

10 At the time Petitioners took at face value the statement in the posted minutes of October 112011 that the Agreed Settlement Order was indeed attached to the official record minutes As noted supra Petitioners later learned that the Agreed Settlement Order was not attached to those minutes - in fact had never been attached to any minutes [App at 991]

II The minutes however do not bear out the explanation [App at 406] And the Planning Commission incorrectly identified the September 13 2011 meeting as the first meeting following the entry of the

12

[App at 547 n 3] But significantly (and germane to the final orders of the court) the Planning

Commission did not assert that there was a genuine issue ofmaterial fact regarding the date on

which the settlement was concluded Had the Planning Commission made such assertion

Petitioners in their reply briefwould have corrected the error restating that they agreed that the

settlement was concluded on August 3 2011 but the Commission provided no occasion for

doing so [App at 613]

Petitioners Motion for Partial Summary Judgment was fully briefed by all parties [App

at 381 543 559 613 675] By order entered on June 192012 the circuit court granted partial

summary judgment to Petitioners thus resolving the issue ofwhether or not the Planning

Commission had violated the Act [App at 786] Also because the Planning Commission and

F AF had both asserted that Petitioners lacked standing to bring the open meetings case [App at

551-554 570-575] the circuit court sua sponte entered a separate order ruling that Petitioners

did have standing to bring their action [App at 798] As a result of these two orders the remedy

for the violations was the only matter still in issue to be tried at the final hearing in the case

The Planning Commission and then FAF each appealed the interlocutory Order

Granting Petitioners Motion for Partial Summary Judgment to this Court [App at 814 843]

This Court dismissed the appeals which Petitioners counsel reported to the circuit court by

letter dated November 9 2012 [App at 866] Subsequently the circuit court set the case for a

status conference for May 152013 [App at 869]

At the telephonic status conference of May 15 2013 counsel for all parties agreed that

this issue ofremedies was the only issue remaining for adjudication at the final hearing [App at

12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There

settlement The fIrst meeting to occur after the circuit courts entry of the Agreed Settlement Order on August 32011 was the meeting of August 92011 [App 385 393]

13

was however disagreement about the proper scope ofa hearing on remedies particularly to the

extent that the merits ofCivil Action No 11-C-125 would be relevant [App at 1229-12419

12520-130101311-813213-171336-13513 1366-13714] Petitioners counsel continued

to dispute that the substantive merits ofthat earlier case should be part ofthe final hearing in the

case below but did not dispute that it was proper to consider the potential impact that the remedy

ofannulment would have on the resolution ofthe earlier case It appeared that counsel and the

Court agreed that this was the proper role ofargument regarding Civil Action No ll-C-125 in

the final hearing ofthe case below [App at 13715-17] Because the final hearing would be

limited to remedies counsel for the Planning Commission suggested that the issue might be

further narrowed by written submissions to which Petitioners counsel agreed and the Court

encouraged [App at 0511513 Tr at 215-24 2216-19 261-11]12

During the May 152013 telephonic status conference counsel for the Planning

Commission suggested that annulment of the vote ofJuly 262011 was a moot point because

the Planning Commission has already affirmed the decision in a separate matter that was

properly noticed under the Open Meetings Act [App at 12916-18 12922-1302] When

counsel for Petitioners requested clarification the Planning Commissions counsel indicated that

he was not sure if another vote had been taken but believed that it had at least been discussed

[App at 145 19-146 11] Petitioners counsel stated that she would like to know if a vote had

actually happened [App at 14613-14] and counsel for the Planning Commission assured her

that he would find out [App at 14622-23] However Petitioners counsel received no further

information from counsel for the Planning Commission and found no mention of a re-vote in the

agenda or minutes of any Planning Commission meeting

12 Nonetheless as of the subsequent scheduling conference more than two months later convened to continue the final hearing originally set for August 152013 [App at 870] neither of Petitioners opponents had filed any motions to further narrow the issues for the fma1 hearing [App at 15710-1589]

14

As it turned out as ofMay 15 2013 the Planning Commission had not already taken a

vote to affirm its vote ofJuly 26 2011 The agenda for the Planning Commission meeting of

June 112013 included the following entry

10 Reports from Legal Counsel and legal advice to the Planning Commission

Active Litigation

bull Far Away Farms - Open Meetings Act LitigationDispute re public notice ofconsideration ofsettlement ofFAF litigation (discussion and possible action)

[App at 885]

Petitioners were not sure ifthis agenda entry was intended as a notice that the Planning

Commission planned to take a curative or do-over vote ofthe July 262011 vote to approve the

Agreed Settlement Order in Civil Action No ll-C-125 [App at 909 1177-1178] However

owing to the remarks ofthe Planning Commissions counsel at the May 15 2013 conference

Petitioner Gary L Capriotti and Petitioners counsel attended the June 112013 meeting ofthe

Commission so as to observe [App at 876 909 1178] When the agenda item which was

moved to the end ofthe meeting [App at 1189 1202 1191 beginning at time marker 1 1950 of

chapter 2] came on the Planning Commission retired to executive session with its counsel

When the Commission reopened the public meeting it voted to afftrm and ratify its vote of July

26 2011 without admitting any defect in its original action [App at 1191 Id]

The Planning Commission did not discuss the vote ofJuly 26 2011 during the public

portion of the June 112013 meeting Id The Planning Commission did not reveal the terms of

the settlement approved on July 262011 either before or at the time ofvoting to afftrm and

ratify it though it did state that the earlier vote was to approve a settlement ofCivil Action No

l1-C-125 Id [App at 1179 1202] The Planning Commission did not provide for public

15

comment on the issue prior to voting to reaffirm and ratify13 [App at 1188 1202 1191] And

even though the Planning Commission directed that the Agreed Settlement Order be attached to

the minutes of the June 11 2013 meeting [App at 1191 1201] the Order was not attached to

the minutes [App at 1179-1180 1193 1204]

Less than two weeks later Petitioners filed their Motion for Leave to File Supplemental

Pleading alleging that in its conduct of the do-over vote ofJune 11 2013 the Planning

Commission committed additional violations ofthe Act that were relevant to those already in

issue [App at 874] The Planning Commission and FAF both opposed the motion [App at

898904] The circuit court denied the motion noting that it had already granted summary

judgment on the past violations of the Act that the sole remaining issue in the case was the

proper remedy for those violations and that Petitioners could argue the alleged subsequent

violations as a factor to be considered in fashioning a remedy [App at 1100]

Despite that the Planning Commission had argued in opposition to Petitioners Motion

for Leave to File Supplemental Pleading that summary judgment had already been granted on

the earlier violations and despite that the circuit court denied the motion in part on that ground

the Planning Commission next filed its Motion to Reconsider and Set Aside Partial Summary

Judgment (Motion to Reconsider) [App at 915] The Commission later moved to disallow

Petitioners from making argument at the final hearing about the do-over vote of June 11 2013

[App at 1144] Petitioners responded to both motions disputing the Planning Commissions

arguments many ofwhich repeated those made at the hearing ofFebruary 10 2012 [App at

977 1168]

13 Petitioners acknowledge that due to the lack of any direct reference or description of the matter under discussion Petitioners counsel would likely have been the only member of the audience who could have made pertinent comments prior to the vote This is especially true given that because of moving the agenda item to the end of the meeting Petitioners counsel was the only person left in the audience [App at 1178]

16

In addition to the Planning Commissions Motion to Reconsider FAF filed its own

dispositive motion In its Motion to Limit Remedy [App at 950] FAF argued that Petitioners

should not be granted any ofthe remedies sought in the case because they were not harmed - or

at most that the Planning Commission should be admonished Petitioners responded including

their own Counter-Motion for Summary Judgment Granting Remedies [App at 1102]

All ofthe final motions were fully briefed by all parties [App at 915 950 977 1102

1138 1141 1144 1150 1160 1168] None ofthe motions were resolved by the circuit court

prior to the final hearing that was set to address remedies [App 870 973] Accordingly the

hearing proceeded as a deacto hearing on the outstanding motions [App at 169]

By Order entered on November 11 2013 the circuit court granted the Planning

Commissions Motion to Reconsider [App at 1238] The court noted that it had initially been

convinced that the Planning Commission had violated the Act and was poised at hearing of

October 182013 to grant [FAFs] Motion to Limit Remedy because of the de minimus nature

ofthe violation and the Planning Commissions attempt to cure it [App at 1239] On November

262013 the court entered a supplemental order [App at 1247] in which it concluded that the

Planning Commission had reported the terms ofthe settlement within a reasonable time The

circuit court stated that it was persuaded by the Commissions argument that the requirement was

met because the settlement was disclosed in the public record of the court [App at 1248-1249]

Petitioners timely filed the instant appeal

III SUMMARY OF ARGUMENT

1 Petitioners repeatedly acknowledged that the settlement was concluded upon the

circuit courts entry of the Agreed Settlement Order on August 3 2011 Entry of the Order was

the event that Petitioners repeatedly cited when calculating the time that had elapsed without the

17

Planning Commission reporting the terms of the settlement in its minutes The Planning

Commission also asserted that August 3 2011 was the date on which the settlement was

concluded but argued that the date on which the settlement was concluded was in dispute The

complete lack ofevidence notwithstanding the circuit court ultimately concluded that a genuine

issue ofmaterial fact existed as to when the settlement was concluded which should have

precluded summary judgment on the issue ofthe timely reporting ofthe settlement The circuit

courts factual predicate was plainly wrong and led the cout to an erroneous legal conclusion

In fact the concluded settlement actually was never reported in the minutes of the Planning

Commission which is per se not within a reasonable time regardless ofthe date on which the

settlement was concluded

2 Petitioners allegations ofviolations ofthe Act were predicated upon the express

provisions of the Act as were the legal conclusions set out the Order Granting Petitioners

Motion for Partial Summary Judgment The circuit courts subsequent conclusion that it had

granted partial summary judgment due to a misplaced reliance Peters v County Comm n of

Wood County 205 WVa 481 519 SE2d 179 (1999) which had a cascading effect on other

points of law is not apparent from the order Furthermore Peters imposed no agenda notice

requirement on governmental bodies that was not imposed by the applicable provisions of the

Act that were in effect at the time 0 f the events at issue in this civil action The Planning

Commission vio lated three mandatory statutory requirements and the circuit court should have

preserved the partial summary judgment on the basis of those statutory requirements

3 It is beyond dispute that on July 26 2011 the Planning Commission took action

on a matter that did not appear on the meeting agenda and retired into executive session without

stating the authority for closing the public meeting It is beyond dispute that the terms of the

18

settlement agreement were never reported in the minutes ofthe Planning Commission - not even

when the Commission took a purported reaffirmation vote at its meeting ofJune 112013 The

record in the case below established that the Planning Commission as a matter ofstandard

operating practice routinely violated the notice provisions ofthe Act The violations at issue

below were substantial as they offend the very purpose ofthe Act The Planning Commissions

violations required a meaningful remedy

IV STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This appeal rests upon express statutory law However this appeal also involves open

meetings issues which this Court has not yet addressed Ofthese the principle issues involved in

this matter are (1) The authoritative effect ofthe statutorily-authorized Open Meetings

Advisory Opinions of the West Virginia Ethics Commissions Committee on Open

Governmental Meetings WVa Code sect 6-9A-IO and -11 (2) The passage oftime that is

reasonable under WVa Code sect 6-9A-4(b )(11) for reporting the terms ofa concluded

settlement that was approved in executive session and (3) The required elements and conduct

for an effective curative do-over vote by a governmental body If the Court wishes to fully

examine any ofthese issues then this appeal is appropriate for Rule 20 argument and decision

v ARGUMENT

1 The circuit court erred in ruling that there was a genuine issue of material fact as to when the settlement was concluded which determination was directly contrary to the record in the case

WVa Code sect 6-9A-4(b)(lI) in relevant part provides

Ifthe public agency has approved or considered a settlement in closed session and the terms of the settlement allow disclosure the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded

19

As is amply shown by the record citations in the Statement ofthe Case supra Petitioners

consistently cited to the circuit courts entry ofthe Agreed Settlement Order which occurred on

August 3 2011 as the event from which the reasonable time to enter the terms ofthe

settlement into the minutes should be measured Petitioners never cited to any other event or

date in its allegations regarding the elapse oftime between the conclusion ofthe settlement and

the reporting of its terms in the minutes ofthe Planning Commission Petitioners never disputed

that August 3 2011 was the date on which the settlement was concluded [App at 989 n 14]

The Planning Commission in asserting that there was a genuine dispute regarding the

date on which the settlement was concluded did not cite to a single instance in the record where

Petitioners had alleged the settlement to have been concluded at any time prior to the circuit

courts entry ofthe Agreed Settlement Order [App at 921-922] This may be because there was

no such instance Nor as the Planning Commission baldly claimed Id did the circuit courts

Order Granting Petitioners Motion for Partial Summary Judgment cite to any other event or date

as the conclusion ofthe settlement [App at 790-791 ~~ 12-14) There was absolutely nothing

to support the Commissions claim that there was a genuine issue ofmaterial fact regarding the

date on which the settlement was concluded

Even ifPetitioners had tried to dispute that the settlement was concluded on August 3

2011 their effort would have been for naught The date ofentry is plain upon the Agreed

Settlement Order An attempted dispute ofthis fact would not have raised a genuine issue

Only a genuine issue of material fact will preclude entry ofsummary judgment

WVRCivP 56(c) Syi Pt 2 Gentry v Mangum 195 WVa 512466 SE2d 171 (1995) This

Court has clearly defmed a genuine issue

An issue is genuine when the evidence relevant to it viewed in the light most favorable to the party opposing the motion is

20

sufficiently open ended to pennit a rational factfinder to resolve the issue in favor ofeither side

Id at 519 466 SE2d 178 The evidence of the date ofthe conclusion of the settlement was not

open-ended but was definitive and incontrovertible No reasonable fact-finder could have

resolved the factual issue in favor of any date except August 3 2011

There was no evidence that the settlement was concluded on any date but August 32011

There was nothing from which a genuine issue could have arisen The circuit court should have

rejected the false claim of a disputed fact and sustained its earlier ruling that the Planning

Commission violated the reporting requirement ofWVa Code sect 6-9A-4(b)11

Furthermore by the time that the circuit court entered its Order Granting Jefferson

County Planning Commissions Motion to Reconsider [App at 1238] Petitioners had shown

that the Planning Commission had not attached the settlement to its minutes ofthe October II

2011 meeting notwithstanding the remark in the minutes that it was doing so [App at 1092

1097] The fact is that the Planning Commission never reported the terms of the settlement in

any of its minutes Accordingly the Planning Commission violated the requirement ofWVa

Code sect 6-9A-4(b)(l1) whether the settlement had been concluded on July 262011 August 3

2011 or some date in between lfthe circuit court was inclined to revise its prior grant ofpartial

summary judgment in any way the fact that the Planning Commission never reported the terms

ofthe settlement should have been the focus of the revision


The material facts necessary to the determination ofwhether or not the Planning

Commission violated the Act are fully established by the official records of the Planning

Commission - the agenda the minutes and the official recordings of meetings The indisputable

21

facts appearing in these official records establish without any room for doubt that the Planning

Commission committed three specific violations ofthe Act in relation to its meeting discussion

and vote to approve a settlement agreement in Civil Action No ll-C-125 and in reporting the

terms of the concluded settlement 14

a Agenda Notice

From the outset ofthe case below Petitioners primary emphasis was the Planning

Commissions failure to include FAF as a topic ofdiscussion on the agenda for the July 26

2011 meeting at which the settlement agreement was discussed and approved Petitioners never

disputed that settlement offer was a proper topic for an executive session with counsel

Petitioners only asserted that the Planning Commission was not entitled to discuss any topic that

did not appear on the agenda [App at 311-13 3210-19 1089-20]

The circuit court ruled that the July 26 2011 executive session with counsel warranted

the public meeting exception found in WVa Code sect 6-9A-4(b)(12) [App at 1244] The circuit

courts reasoning suggests that it accepted the Planning Commissions argument that an

executive session to consult with counsel need not comply with the advance notice requirements

ofthe Act [App at 1239-1240 1244] The court concluded that there was a disconnect

between this Courts holding in Peters v County Commission of Wood County 205 WVa 481

519 SE2d 179 (1999) and the more permissive version of the Act applicable to the facts of

the case below [App at 1240] In sum the circuit court concluded that Peters imposed agenda

notice requirements that the amended Act does not Petitioners contend that this is a

misinterpretation of the provisions of the Act

14 In addition to the record citations appearing in the Statement of the Case supra Petitioners arguments herein also were fully set out in final briefs in the case [App at 980-992 1102-1106 1107-1115 1169shy1180]

22

The Legislature recognized that it would be unrealistic to require every communication or

consultation ofa governmental body to occur in a public meeting WVa Code sect 6-9A-1

Accordingly the Act was crafted so as to balance these interests in order to allow government

to function and the public to participate in a meaningful manner in public agency

decisionmaking Id See also State ex rei Marshall Co Comm n v Carter 689 SE2d 796

802 (WVa 2010) In balancing the interests the Legislature identified specific circumstances

under which a governing body could meet in executive session instead ofan open public

meeting WVa Code sect 6-9A-4(b) Where the Legislature also intended to exempt a meeting

conducted under one of the 4(b) exceptions from other requirements of the Act it expressly

provided for the additional exception See eg WVa Code sect 6-9A-4(b)(11) expressly

allowing approval of a settlement in executive session which otherwise would violate 6-9Ashy

4(a)s prohibition against making a decision in executive session

WVa Code 6-9A-3 provides

Each governing body shall promulgate rules by which the date time place and agenda ofall regularly scheduled meetings and the date time place and purpose ofall special meetings are made available in advance to the public and news media except in the event of an emergency requiring immediate official action

Emphasis added

An executive session with counsel to discuss settlement ofpending litigation is not an

event that the Legislature has chosen to exempt from the agenda notice requirements ofWVa

Code sect 6-9A-3 No express exception to the agenda notice requirement appears in WVa Code

sect 6-9A-4(b)(11) or (12) Sprout v Bd ofEduc ofCo ofHarrison 215 WVa 341 599 SE2d

764 (2004) involved a school boards having discussed a settlement with its counsel in executive

session This Court noted

23

the record does clearly demonstrate that the Board members discussed this issue during executive session for more than two hours and that the Boards legal counsel was present at the meeting To this end with regard to the Boards contention that it acted on measures that lVere not on the agenda we caution the Board and its counsel to familiarize themselves with WVa Code sect 6-9A-3 (requiring an agency to give notice of the agenda)

599 SE2d 764 768 at n 2 15 This dicta from Sprout issued years after the 1999 amendments

to the Act is entirely consistent with the holding found in Syl Pt 2 Peters 205 WVa 481519

SE2d 179 as to the agenda notice requirement 16

The Open Governmental Meetings Committee (the OGMC) of the WVa Ethics

Commission issues interpretive instruction to governmental bodies through its Open Meetings

Advisory Opinions 17 WVa Code sect 6-9A-IO and -11 As to agenda notice there is no Advisory

Opinion that supports the arguments of the Planning Commission or the ruling ofthe circuit

court below

The OGMC has advised that a matter that does not appear on the agenda may not be

discussed at a meeting if the discussion will ultimately require official action OMAOl8 No

2011-03 see also OMAO No 2003-04 Ifa matter does not appear on the agenda it may be

discussed only for logistical purposes such as deciding to place the matter on the agenda ofa

future meeting OMAO No 2006-13 General agenda entries are not sufficient notice because

15 Petitioners cited this instructive dicta ofSprout for the agenda notice requirement in their Petition [App at 279] and throughout the case below [App at 325387619683-683 1108 1165]

16 See also Wetzel County Solid Waste Authority v West Virginia Division ofNatural Resources 184 W Va 482 401 SE2d 227 (1990) in which a settlement agreement entered into by a public body during an executive session in violation ofW Va Code sectsect 6-9A-1 et seq had been held to be void ab initio by a circuit court Wetzel County shows that the agenda notice requirement was applied to executive sessions with counsel long before Peters just as Sprout shows that the requirement has continued to apply to executive sessions after the 1999 amendments to the Act

17 The Advisory Opinions indexed by year and by topic are available on the Ethics Commission website at httpwwwethics wvgovadvisoryopinionPagesOpenMeetingsOpinionsaspx

18 OMAO is the acronym for Open Meetings Advisory Opinion

24

items must be stated in a manner that makes the public aware ofparticular matters to be dealt

with at the meeting OMAO No 2006-14 at p 2 In accord see also OMAO 2007-10

OMAO 2008-17 OMAO 2009-02 The agenda requirement also applies to matters that may be

discussed in executive sessions OMAO No 2009-04 OMAO No 2008-17

Consistent with the plain language ofWVa Code sect 6-9A-3 quoted above the OGMC

has advised that [a]bsent a bonafide emergency requiring immediate official action a

governing body may neither add an item to the meeting agenda in the course of a public meeting

nor convene an emergency meeting to take official action on a matter that does not require

immediate official action OMAO No 2007-05 at p 3 Ordinarily an emergency involves

an unexpected situation or sudden occurrence ofa serious nature such as an event that threatens

public health and safety where the governing body must be required to take immediate official

action in response to the situation19 Id at p2

The Acts agenda notice requirements applied to the Planning Commissions July 26

2011 executive session with its counsel to discuss settlement ofthe FAP appeal The hold-spot

entry on the agenda Reports from Legal Counsel and legal advise to PC was insufficient to

inform the public ofthe particular matters that would be discussed The OGMC has advised

Where the [body] is going to discuss possible settlement ofa pending lawsuit with its attorney the agenda may state consider resolution of the federal lawsuit filed by John Doe or discuss pending lawsuit ofDoe v Board with legal counsel The governing body should identify the party or parties who have filed suit against the [body] by name on the meeting agenda whenever the identity ofsuch persons is a matter of public record

OMAO No 2007-10 at p 2 The public body merely has to identify by name the litigation that

will be the subject ofdiscussion even if the discussion will occur in an executive session with

19 It is noteworthy that during its 2013 Regular Session the Legislature amended Section 2 of the Act in order to define an emergency meeting which definition is consistent with the OGMCs explanation in OMAO No 2007-05 See WVa Code sect 6-9A-2 [App at 1110 n 15]

25

legal counsel This modest requirement does not intrude upon the ability of the Planning

Commission to secure timely consultation with its counsel as the Planning Commission

persistently argued through the end of the case below [App 917-919 922-931]

The error in the Planning Commissions argument is that it contlates the duty ofthe

lawyer with the obligation ofthe Planning Commission under the Act Nothing in the Act

prevents a lawyer from promptly conveying receipt ofa settlement offer to hislher client or even

requires the offer to be conveyed at a scheduled meeting - a fact that counsel admitted below

[App at 7923-806] Counsel for the Planning Commission could have related the settlement

offer to the client by any expedient means However once counsel did so it was the Act that

dictated what the Planning Commission could do in regard to the offer The lawyers duty to

promptly advise does not translate into the Planning Commissions right to immediately act

This is the distinction that the Planning Commission has persistently failed to acknowledge

What the Planning Commission could not do is what it did immediately retire into

executive session20 to discuss the settlement offer with its counsel when the F AF appeal did not

appear on the agenda as a topic that would be discussed at the meeting The receipt of this

settlement offer which was discussed for some time prior to the meeting of July 262011 [App

at 11 5-9] is not an emergency that permitted the Planning Commission to discuss and take

action on the matter without meaningful advance agenda notice21

What the Planning Commission should have done was to decide to schedule the

settlement offer for discussion and possible action at a future meeting OMAO No 2006-13

20 bullbullbull upon being told by its counsel I will expect action immediately after the session [App at 1251 at time marker 20202]

21 Petitioners also would note that the Planning Commissions new practice of listing all pending litigation on every agenda as a hold spot is not meaningful notice either [App at 1032-1072] An agenda is to inform the public of the business and the subjects that will be discussed

26

The Planning Commission could have set the matter for a special meeting as soon as three days

later upon notice posted for two days OMAO No 2007-06 OMAO No 2006-15 OMAO No

2006-11 This is a reasonable accommodation ofthe legislative intent that the needs of the

public body be balanced with the right of the public to be informed ofthe activities ofthe body

Moreover the Planning Commission did not cure the defective July 262011 vote by the

perfunctory reaffirmation vote it took some twenty-three (23) months later22

This Court has acknowledged that a public body can correct a violation by curative

action but found that a later public meeting that was perfunctory and did not recount the

discussion had at the improper private meeting did not correct the improper meeting McComas

v Bd ofEduc ofFayette County 197 WVa 188201475 SE2d 280293 (1996) The Court

cited Kramer v Board ofAdjustment Sea Girt 80 NJSuper 454 194 A2d 26 (1963) for its

analysis of an attempted curative vote which analysis is particularly instructive in the instant

case The Kramer court rejected a rubber stamp vote on a verbatim resubmission taken nearly

four months later To accept such a vote as curative the Kramer court warned would invite

violations ofthe law - if the body was then challenged it could just convene and take a hasty

revote Id at 464 194 A2d at 31 In short ifperfunctory re-votes are accepted as curative a

public body has an incentive to ignore the Act and play the odds that it wont be challenged

The OGMC also has addressed the situation where a public body desires to correct a prior

violation of the Act OMAO 2005-10 The OGMC advised that the elements ofa curative

action include (l) The body taking reasonable remedial measures over and above ceremonial

and perfunctory ratification of the official action previously taken (2) Notice of the meeting

that include[s] a description of the matters being reconsidered and (3) [8]efore any decision

22 As an initial matter the Planning Commission follows Roberts Rules ofOrder which require a reconsideration vote to be taken at the same or the very next meeting See also Petitioners argument at 1175-1176

27

is made or vote taken there shall be an opportunity for public comment on the matter being

reconsidered OMAO 2005-10 at p 3 emphasis added

The Planning Commissions re-vote ofJune 11 2013 had none of the elements of an

effective curative vote described in OMAO 2005-10 The agenda notice did not describe the

matter (the settlement) that would be reconsidered [App at 1188-1189] The agenda item was

one not open for public comment Id at 2 The settlement under consideration was not

identified or described until the motion to vote to reaffIrm it was made effectively precluding

public comment before the vote even during the open comments period that occurred at the top

of the meeting agenda [App at 1179 1202 1191 beginning at time marker 1 1950 of chapter

2] The vote taken did not rise above a ceremonial perfunctory act The re-vote occurred long

after the original vote had been challenged by Petitioners - and the Planning Commission

through its counse~ fundamentally admitted that it was done to defeat Petitioners remaining

claim for remedies [App at 12915-1302 14519-14623] The re-vote represents everything of

which the Kramer court warned

The re-vote ofJune 112013 was not a good-faith or effective effort by the Planning

Commission to cure its violation ofJuly 262011 It did not merit consideration as a factor in

the Planning Commissions favor in detennining the seriousness ofthe original violation or the

propriety of the remedies sought by Petitioners It did not diminish the Planning Commissions

violations in any degree and the circuit court erred in deeming that it did [App at 1239]

b Announcement of Authorization for Executive Session

WVa Code sect 6-9A-4(a) in relevant part provides

During the open portion ofthe meeting prior to convening an executive session the presiding officer ofthe governing body shall identify the authorization under this section for holding the executive session and present it to the governing body and to the

28

general public but no decision may be made in the executive seSSIon

The authorization announcement requirement is plain direct and unequivocal The

Planning Commission failed to comply with this requirement prior to retiring into executive

session on July 26201123 This fact is beyond dispute and the circuit court should have so

ruled

c Reporting the Terms of the Settlement

WVa Code sect 6-9A-4(b)(11) in relevant part provides

If the public agency has approved or considered a settlement in closed session and the terms ofthe settlement allow disclosure the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded

As discussed previously herein it is beyond dispute that the Planning Commission never

reported the terms of its settlement with FAF at a meeting and never entered a report ofthe

terms in its minutes Nonetheless the circuit court concluded that the Planning Commission did

report the terms ofthe settlement within a reasonable time because the Agreed Settlement Order

was submitted to the circuit court for entry in the F AF appeal and became part ofthe public

record of the court [App at 1248-1249]

The Act anticipates that the public and media will be kept informed of the activities of

government bodies through the official records ofthose bodies - the agenda and minutes There

is no suggestion in the Act that the Legislature intended for the public to have to search through

the records maintained in the circuit clerks office to discover the actions that have been taken by

a governmental body It would seem likely that the members ofthe Legislature would be aware

23 Also the Planning Commission went into executive session after the start of a break in the meeting [App at 1251 at time marker 20131] So it is arguable that the decision to retire into executive session did not occur during the public portion of the meeting at all insofar as the meeting was on break

29

that settlements are often submitted to the court for entry in the case being settled and yet the

Legislature did not see fit to make this common event an exception to the statutory requirement

of reporting in the minutes

Code sect 6-9A-4(b)( 11) is clear and unequivocal It provides that the terms of a settlement

shall be reported and entered in the minutes It is well established that the word shall in the

absence oflanguage in the statute showing a contrary intent on the part ofthe Legislature should

be afforded a mandatory connotation Syl Pt 1 Nelson v W Va Pub Emp Insur Ed 17

WVa 445 300 SE2d 86 (1983) WVa Code sect 6-9A-4(b)(lI) provides no occasion to deviate

from its plain terms The circuit court erred in concluding that submission of the settlement to

the court was the equivalent of reporting the terms of the settlement in the minutes ofthe

Planning Commission


The West Virginia State Legislature has declared open government to be the law of this

State and has thoroughly articulated the important public policies that the Act is intended to

serve

The Legislature hereby fmds and declares that public agencies in this state exist for the singular purpose ofrepresenting citizens of this state in governmental affairs and it is therefore in the best interests of the people ofthis state for the proceedings ofpublic agencies be conducted openly with only a few clearly defmed exceptions The Legislature hereby further finds and declares that the citizens of this state do not yield their sovereignty to the governmental agencies that serve them The people in delegating authority do not give their public servants the right to decide what is good for them to know and what is not good for them to know The people insist on remaining informed so that they may retain control over the instruments ofgovernment created by them

Open government allows the public to educate itself about government decisionmaking through individuals attendance and

30

participation at government functions distribution ofgovernment infonnation by the press or interested citizens and public debate on issues deliberated within the government

Public access to infonnation promotes attendance at meetings improves planning ofmeetings and encourages more thorough preparation and complete discussion of issues by participating officials The government also benefits from openness because better preparation and public input allow government agencies to gauge public preferences accurately and thereby tailor their actions and policies more closely to public needs Public confidence and understanding ease potential resistance to government programs

Accordingly the benefits ofopenness inure to both the public affected by governmental decisionmaking and the decision makers themselves

WVa Code sect 6-9A-l Declaration of legislative policy

The Planning Commissions violations ofthe Act were such as strike at the core

purposes ofthe Act Petitioners who were directly interested in F AF s appeal were directly

harmed by the Planning Commissions failure to provide advance agenda notice that the case

would be discussed at the July 262011 meeting The public at large was harmed by each ofthe

three violations insofar as there still may be interested members oft-he public who are

uninfonned ofthe actions that the Planning Commission secretly took in regard to the Far Away

Farm project Even those members of the public who have no interest in the Far Away Farm

project have been deprived of the right guaranteed to them by the Act to know what is being

done by an instrument of their government in the execution of its duties This right is not a mere

nicety to be observed or not at an agencys convenience - it is essential to maintain the infonned

and engaged populace that is necessary to our participatory fonn ofgovernment

The Planning Commissions violations were not de minimus Nor as the record below

showed were they isolated The Planning Commissions violations that were at issue below

were shown to be part ofan established standard practice of violations This fact - and not the

31

middot

perfunctory do-over vote ofJune 11 2013 - should have influenced the circuit courts view of

the conduct of the Planning Commission in relation to its settlement with FAF

Petitioners case provide an opportunity to grant a meaningful remedy for the harms done

to Petitioners personally and to protect the public at large from the pernicious effects of the

Planning Commissions institutional practices in violation ofthe Act In view ofthe Planning

Commissions long-standing practice ofviolating the Act at will the remedies sought by

Petitioners below were not only reasonable and appropriate but would have inured to the benefit

ofthe public as well as Petitioners [App at 1115-1120] The continuing course ofviolations

would have been brought to an end that is long overdue for the people ofJefferson County

The circuit court erred in ruling that the Planning Commissions conduct was de minimus

on the basis ofwhich it refused to grant the reasonable and necessary remedies for a very serious

and ongoing violation ofthe law

VI CONCLUSION

The official records ofthe Planning Commission prove beyond any iota ofa doubt that

the Planning Commission violated the Open Governmental Proceedings Act by three specific

omissions committed in relation to its approval ofan Agreed Settlement Order in an appeal

brought against it by Far Away Farm LLC The Planning Commission did not identify the Far

Away Farm case as a subject ofdiscussion on the agenda for the Commissions meeting ofJuly

262011 Nonetheless the Planning Commission discussed the Far Away Farm caseshy

specificallY approval ofa private settlement of the case - at its meeting of July 26 2011 The

Planning Commission failed to announce the reason for retiring into executive session with its

counsel wherein the discussion ofthe Far Away Farm appeal occurred The Planning

Commission then failed to ever report the terms of the settlement in its minutes let alone within

32

middot ~

a reasonable time after the settlement was concluded by the circuit courts entry of the Agreed

Settlement Order These are the facts and they are incontrovertible

Because the circuit court declined to enforce the Open Governmental Proceedings Act

against these violations their cessation can be secured only upon a favorable ruling for

Petitioners by this Court

The refusal of the circuit court to enforce the Act has policy implications that transcend

the facts ofthe instant case and the interests ofthe parties involved The Act makes provision

for the instruction and assistance ofpublic bodies that must comply with its requirements and

does so for good reason The realization of the purposes of the Act depends primarily on faithful

compliance by governmental bodies Failing that the law relies upon the enforcement of its

requirements through actions brought by citizens Few private citizens would be willing to

endure the procedural excess of the case below where the violations were so clearly beyond

dispute in the earliest days of the case only to have a court diminish the seriousness of the law

by calling multiple violations de minimus The decision of the circuit court below provides an

incentive for violators ofthe Act and a disincentive for citizens who might otherwise bring a

corrective enforcement action

Petitioners pray that this Court will remain steadfast in the message of its precedents

The Open Governmental Proceedings Act is a critical part ofour body of law not to be

dismissed lightly but to be enforced to the full extent of its reach and purpose

WHEREFORE Petitioners respectfully ask this Honorable Court to

1 Reverse the circuit courts final rulings below both the Order Granting Jefferson

County Planning Commissions Motion to Reconsider and the Supplemental Order to Order

Granting Jefferson County Planning Commissions Motion to Reconsider

33

2 Hold that the Planning Commission violated the Act as asserted by Petitioners

3 Direct that the proper remedies be awarded to Petitioners including

a Annulment of the Planning Commissions July 262011 approval of the

settlement agreement with Far Away Farm to resolve Civil Action No ll-C-125

b Injunction compelling the Planning Commission to comply with all

requirements ofthe Act in the future

c The costs and attorney fees incurred in this case including for this appea~

upon application therefor and

4 Require the Planning Commission to promptly enter into its minutes the

decision of this Court

GARY CAPRIOTTI et aI The Petitioners By counsel

Linda M Gutsell (WV Attorney at Law 107 N College St Martinsburg WV 25401

34

t 6

CERTIFICATE OF SERVICE

I Linda M Gutsell counsel for Petitioners Gary L Capriotti et aI do hereby

certify that I have served the foregoing BRIEF OF PETITIONERS upon Respondents by

sending a true and accurate copy thereofby US Mail Priority postage prepaid to the counsel of

record for Respondents at the addressesfax numbers shown below this 25Uz day ofMarc~

2014

Steven V Gro~ Esq Office of the Prosecuting Attorney PO Box 729 Charles Town WV 25414

Richard G Gay Esq Nathan P Cochran Esq Law Office ofRichard G Gay LC 3 I Congress St Berkeley Springs WV 25411

Linda M Gutsell ( Attorney at Law 107 N College St Martinsburg WV 25401

35

TABLE OF CONTENTS

Table of Contents 1

Table of Authorities ii

I ASSIGNMENTS OF ERROR 1

II STATEMENT OF THE CASE 1

III SUMMARY OF ARGUMENT 17

IV STATEMENT REGARDING ORAL ARGUMENT AND DECISION 19

V ARGUMENT 19

1 The circuit court erred in ruling that there was a genuine issue of material fact as to when the settlement was concluded which determination was directly contrary to the record in the case 19

2 The circuit court erred in setting aside the Partial Summary Judgment thereby concluding that the Planning Commission had not violated the Open Governmental Proceedings Act 21

a Agenda Notice 22

b Announcement of Authorization for Executive Session 28

c Reporting the Terms of the Settlement 29

3 The circuit court erred in concluding that the Planning Commissions conduct was de minimus and did not merit a remedy30

VI CONCLUSION 32

VII CERTIFICATE OF SERVICE 35


Case Law










Statutes






WVa Code sect 6-9A-4(b)(11) 6 71921232930

WVa Code sect 6-9A-4(b)(12) 22 23

11






OMAO No 2003-04 24

OMAO No 2005-1 0 27 28

OMAO No 2006-11 27

OMAO No 2006-13 24 26

OMAO No 2006-14 25

OMAO No 2006-15 27

OMAO No 2007 -525

OMAO No 2007-06 27

OMAO No 2007 -1 025

OMAO No 2008-17 25

OMAO No 2009-02 25

OMAO No 2009-04 25

OMAO No 2011-03 24

Rules


WVRCivP 12(b)(6) 6

111


































[App at 277-278 1080-1081]


2

I






















3























4






















5























6























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35


Case Law










Statutes






WVa Code sect 6-9A-4(b)(11) 6 71921232930

WVa Code sect 6-9A-4(b)(12) 22 23

11






OMAO No 2003-04 24

OMAO No 2005-1 0 27 28

OMAO No 2006-11 27

OMAO No 2006-13 24 26

OMAO No 2006-14 25

OMAO No 2006-15 27

OMAO No 2007 -525

OMAO No 2007-06 27

OMAO No 2007 -1 025

OMAO No 2008-17 25

OMAO No 2009-02 25

OMAO No 2009-04 25

OMAO No 2011-03 24

Rules


WVRCivP 12(b)(6) 6

111


































[App at 277-278 1080-1081]


2

I






















3























4






















5























6























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35






OMAO No 2003-04 24

OMAO No 2005-1 0 27 28

OMAO No 2006-11 27

OMAO No 2006-13 24 26

OMAO No 2006-14 25

OMAO No 2006-15 27

OMAO No 2007 -525

OMAO No 2007-06 27

OMAO No 2007 -1 025

OMAO No 2008-17 25

OMAO No 2009-02 25

OMAO No 2009-04 25

OMAO No 2011-03 24

Rules


WVRCivP 12(b)(6) 6

111


































[App at 277-278 1080-1081]


2

I






















3























4






















5























6























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35


































[App at 277-278 1080-1081]


2

I






















3























4






















5























6























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35






















3























4






















5























6























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35























4






















5























6























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35






















5























6























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35























6























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35























7


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35


















8






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35






125 [App at 211-52311-166517-665]








421-214313-4415116-523 541S-5512 5812-632 11320-1142]










9



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35



















easily [App at 3210-34123518-21414-2110823-1108]





10























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35























11


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35


594-612 964-971]



















12






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35






















12119-12271255-612520-2113120-211322 1329-12 1321713222-23 873] There


13
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35
























14





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35





Active Litigation


[App at 885]
















15





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35





















977 1168]


16
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35
























17
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35
























18

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35

















v ARGUMENT




19
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35
























20























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35























21





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35





a Agenda Notice


















22















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35















Emphasis added







23









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35









court below










24





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35





















25























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35























26
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35
























27























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35























28





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35





ruled
















29











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35











Planning Commission




serve



30



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35



















31

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35

middot













VI CONCLUSION











32

middot ~
























33













34

t 6






2014




35

middot ~
























33













34

t 6






2014




35













34

t 6






2014




35

t 6






2014




35

me court of appeals of wes · at time marker 2:02:02] the agenda ofthe planning commission for its...

Documents